论依法治国与社会改革之和谐

当前,我国依法治国和社会改革同时展开,“依法治国”方略的确立要求保持法的稳定性、树立法律至上的权威;但改革所引起的社会关系的变动不得不在一定程度上影响了法的权威性与稳定性。实际上,二者并不存在根本性的矛盾,使二者和谐的主导思想是:改革意味着变法,变法要为改革服务。     

哈耶克政治制度理论研究:关于自发秩序理论下普通法法治国建构路径之探讨——兼评《规则·秩序·无知——关于哈耶克自由主义的研究》

哈耶克的理论以其论战式的理论建构风格和否定性的进化认知方法对其论战的对手———唯理性主义构成了强大的冲击。然而,以批判的路径进行建构,是否可以成为普适之经验,应是值得探讨的学理问题。主要探讨以下两方面:其一,哈耶克的否定性认知方法,是否足以回避其批判对象之弊病;其二就哈耶克的标志性社会理论,尤其是自由秩序而言,在本书所指的两类秩序中,作为规则的秩序之进化,究竟是为受何者规定之变革,以及其对于处于以制度移植为代表特征的现代化进程中的中国社会所具有之意义。     

Making the investment provisions of the Energy Charter Treaty sustainable development friendly

The International Energy Agency estimates that $16 trillion of investment will be needed to meet world energy requirements from 2003 to 2030. The world's poorest countries, where some of the fastest rates of increase in energy production are expected, will require a significant portion of this investment. Energy investment, both as a source of foreign exchange and to expand local access to electricity and other forms of energy, is integral to socioeconomic development. It is reasonable to expect that this anticipated investment will witness a significant number of disputes between investors and host governments. A fair and just dispute settlement system can help promote the needed investment and sustainable development. The Energy Charter Treaty (ECT) takes a comprehensive approach to the international energy sector, including coverage of trade, transit, competition and the environment, but its investment provisions have proven most significant with three international arbitral tribunals having issued decisions under the treaty and more disputes pending. While much of the ECT's effort has been to bridge the former East–West economic divide, the Treaty's scope of application is potentially worldwide, and given the inextricable link between energy, development and the environment it makes sense that the Treaty process forge a developing-country regime, one that promotes the development of energy resources and sustainable development. Drawing upon the work of Konrad von Moltke and the International Institute for Sustainable Development (IISD) and in light of tribunal decisions to date, this essay maintains, inter alia, that the ECT should impose basic transparency and good faith requirements on investors and create a special developing-country regime, promoting sustainable development.

The Case of the Hypocritical

This paper analyzes the idea of critique as an idea, in relation to the problematic fiction of legal foundations. In doing so, it refers to the work of Giorgio Agamben and Jean-Luc Nancy. In particular, Jean-Luc Nancy’s concept of the lapsus of right (jus) is explored in relation to the fiction of a Law of law and the notion of the Right to have rights. The paper argues for the conception of an immanent critique of law that seeks to have done with foundational judgments as primary to critique. To have done with judgment as primary is crucial as judgment is the way in which philosophies of law have attempted to establish their own justification while claiming that such a ground or justification comes from an external source. Instead, what is to be reconceived and in a preliminary way is that critique and its concepts are intimate to their problems and vice versa. I wish to thank each of the participants to this issue for their effort and their kind collaboration and V. Kelley for her invaluable assistance in the final editing process. I thank C. Douzinas for introducing me to the work of Jean-Luc Nancy and P. Fitzpatrick and S. Motha for sharing their paths of reading. Especial thanks to A.␣Schütz, E. Loizidou, N. Moore, J.á. Bellido Anon and A. Bottomley for discussions on disagreement. Gratitude is owed to J.-L. Nancy for inspiring thoughts and writings and for the sweetness in response to my suggestion that there are no antidotes to the poisons we write. This is for the wonderful Elene.     

政府的基本职能:代理与服务--国家起源的政治学与经济学再解读

国家与公众之间形成的契约关系、委托代理关系和交换关系,是政治学与经济学国家理论一致的解释.政府的基本职能应该以公众的委托为核心,以成本收益为政府产出的原则.政府与公众之间的委托代理特性导致政府的"败德行为"很难避免,强化政府的代理理念与服务理念就成为政府履行与公众之间的委托代理约定的关键一环.     

赔还是不赔——行政不作为赔偿案件中的哈姆雷特式问题

关于行政不作为国家赔偿的讨论早已不是新的话题,但已有的探讨并没有穷尽"赔还是不赔"--这一哈姆雷特式问题的答案,尤其是现有的最高人民法院关于不作为国家赔偿的司法解释存在一定程度的误导作用.实践中,行政不作为赔偿案件在诉讼中会面对司法审查权与行政裁量权的冲突问题和几种赔偿责任并存时请求权的排序问题.一般来说,对裁量行为违法实行赔偿责任豁免,但如果行政机关滥用裁量权,则应当承担赔偿责任;而几种赔偿责任并存时,究竟采用何种赔偿责任形式,问题非常复杂,理论研究也尚处于不成熟阶段.     

The ‘science’ of superiority: Africa and scholarly colonial assumptions

ABSTRACT

The use of ‘neopatrimonialism’ as a category in mainstream scholarship on African polities and economies is ubiquitous. A critique by Thandika Mkandawire has shown that the ‘neopatrimonial school’ is devoid of conceptual coherence and analytical power – it is an expression of a prejudice, not a useful tool for research and analysis. The article endorses Mkandawire's view but points out that this is by no means the only example of its kind. On the contrary, the use of categories which assume the superiority of societies in the global North over those in Africa is widespread. The article illustrates this by discussing and criticising two others, the ‘democratic consolidation’ paradigm and the ‘failed state’ framework. It argues that all three shape assumptions by scholars in Africa as well as outside it which obstruct concrete analysis. A critique of these paradigms is thus essential to the development of scholarship on and about Africa.     

The role of social media in freeing Botswana from state control of the media

This paper argues that social media is important in any state which claims to be a democracy and that failure to have robust media involvement in the democratic process is likely to jeopardise democratic principles. Although Botswana has been crowned as a successful story of African democracy over time, it is argued here that she is a liberal democracy marred by some shortcomings – especially those that have to do with government-media relations. The paper contends that the media (both government and private) is an indisputable partner in the deliberative democratic process, which should be nurtured and celebrated. A case is made that relations between the Botswana government and the country's media houses has of late become hostile, as evidenced by the arrests and detentions of journalists. Premised on deliberative democratic theory, the article argues that a state which claims to be democratic, such as Botswana, needs to respect basic fundamental principles of democracy, such as freedom of the press.     

Neither inside nor outside the corridors of power: prosaic petitioning and the royal burghs in early modern Scotland

ABSTRACT

This article explores early modern petitioning in the context of urban Scotland. It focuses on prosaic rather than political petitioning, on the basis that the former was more truly characteristic of what the purpose of petitioning was understood to be by most of those who engaged in it. The burghs of Scotland provide an added dimension to the history of petitioning because of the role of their national assembly (the Convention of Royal Burghs), which was simultaneously a recipient of petitions, a conduit for its members’ petitions to the crown, and a petitioner of the crown in its own right. This article also reveals how changing practices of petitioning shed light on the development of the early modern Scottish state, as the Convention of Royal Burghs found its members increasingly bypassing it and instead they resorted directly to central government institutions.